The Seattle Post-Intelligencer (AP) has a list of major school segregation cases, including Keyes v. School District No. 1, Denver, "ruling that schools have responsibility to desegregate, even in districts where schools had not been segregated by law."

Washington Post: "Court Limits Use of Race to Achieve Diversity in Schools."

CNN's analysis, by Jeffrey Toobin, states the issues in the lede as "race, affirmative action and education." Segregation and desegregation are strikingly absent, since they are the core issue of the case. At the end, however, Toobin writes "This is going to rank with the great, important school desegregation opinions of the court's history, starting with Brown v. Board of Education in 1954. This, of course, is one where the school districts were told they couldn't integrate their schools, so coming from the opposite direction."

It's been a discouraging week at the Supreme Court. Over the last four days, there have been five major decisions, all of them 5-4 rulings, all of them victories for conservatives, and all of them backed by the same five-member majority (Roberts, Alito, Scalia, Thomas, and Kennedy).

Today's ruling on school racial integration was probably the most disappointing of all.[...]Stevens' and Breyer's dissents (.pdf) are both worth reading. Their disdain for the majority is palpable.

Ultimately, of the five controversial rulings this week, Roberts wrote the majority opinion in three, and Alito wrote the other two.

I guess it's one of those elections-have-consequences moments, isn't it?

Scott Lemieux gives his first thoughts on the decision, including the stunning revalation that Thomas' dissent doesn't provide any evidence that the original intent of the 14th amendment was to prohibit race-based classifications for remedial purposes. "Strange; I'm sure he must have it somewhere and just hasn't gotten around to it!"

Archpundit thinks Kennedy's concurrence will be meaningless. I'm not sure--and I don't know if desegregation orders are necessary for his distinction to be applicable.

James Joyner: "The Supreme Court, in yet another 5-4 ruling, has decided that discriminating on the basis of race is not a Constitutionally permissible solution to race discrimination....The 14th Amendment rather clearly enjoins discrimination on the basis of race....In the present cases, the districts were trying to force integration of schools to remedy benign neighborhood settlement patterns." Aside from whether race-conscious integration plans should be considered "discrimination" (see the comments) under the parameters of the 14th amendment, I'm curious as to what is so "benign" about residential segregation? Is it not meaningful or significant that White people in the "post-racism" era still apparently want to live in largely segregated neighborhoods?

SCSU Scholars: "[T]hat sentence from the Chief Justice will be valuable when perhaps a better case comes before the Court."

I cannot help but think about former Justice Thurgood Marshall, and his NAACP legal compatriots, and their joy on the steps of the US Supreme Court following reading of the opinion in Brown v. Board of Education, and what that decision meant for so many Americans who were, in that moment, lifted up. The joy on their faces, and the hope.

Today, all I am feeling is hollow — that this Supreme Court lifts up no one but those who think as they do, and that the rest of the nation, especially those who most need a hand up from the shadows of poverty and despair, are left on the sidelines whether or not they have been wronged.

Taylor Marsh: "Sometimes supposedly brilliant people are just book read individuals without any common sense or understanding of culture and the realities of real life."

Paul Horwitz: "Why is higher education a "unique context" in ways that elementary education is not, at least for purposes of this case? Courts usually speak in terms of the special expertise that universities have in deciding who shall be a member of the student body, among other questions; why do lower public schools not possess similar epistemic authority as compared to the courts?"

The Legal Defense Fund, its "where do we go from here" post, stresses that a five judge majority recognized that racial diversity is a "compelling interest". Also over there, posts by UVA Law Professor Jim Ryan (who predicts Kennedy's opinion will play a future role similar to Powell's opinion in Bakke) and Washington University Law Professor Samuel Bagenstos (exploring why Roberts' Van Alstyne-esque quote is a misguided solution to the problem). Bagnestos is one of the nation's foremost authorities on the legal aspects of the psychology of prejudice.

Jack Balkin: "The Parents Involved decision-- Swann Song or Bakke for our times?"

Liberty Papers asserts that the "the plain fact of the matter [is] that the 14th Amendment was clearly intended to make the Constitution colorblind." That's a lot of bluster for a position that even uber-originalist Clarence Thomas apparently hasn't be able to back up. There is little to no evidence that the 14th amendment was originally intended to set up a "color-blind" norm (which has no bearing on whether it is a good policy argument--or even, since I'm not an originalist, a good legal argument--but we should be honest about our positions).

The Progressive Pulse notes the poor outcome of color-blind student assignment plans in North Carolina at maintaining desegregated schools.

Rhymes with Right shows the dilemma nicely: "The problem is that Brown does not call for integration -- it calls an end to legally-mandated segregation. Indeed, "integration" of schools is not required by the Constitution and would, in most places, require an unconstitutional distribution of benefits and burdens based upon race of the sort banned under Brown to accomplish." That has the benefit of honesty--the plurality would hold that integration is unconstitutional, I would hold that it is quite constitutional and (to quote Kennedy) a "moral and ethical obligation."

Stereohyped: "Good News For White Parents In Seattle And Louisville: You Can Take Your Kids Out Of Private School Now." I can't really protest the snark, although in an ideal world I'd hope that White parents, too, would recognize and press for the benefits a racially integrated education provides.

4 comments:

I'd like to put a finer point on your interpretation of my comments -- it isn't integration per se that is unconstitutional, but rather that de jure integration is unconstitutional in precisely the same way as de jure segregation is unconstitutional. If we are to have equal protection of the law (you know, like the 14th Amendment calls for), then government cannot distribute benefits and burdens based upon race.

Taking this out of the realm of schools and into another contentious area, government has every right to act to put an end to legally mandated racial segregation in housing, but has no place determining who can or cannot buy/rent a home to ensure the "proper" racial balance in the neighborhood.

That's fine. If you're saying that the state is legally barred from integrated schools, I'm quite willing to describe the clash as between those of us who think the state can integrate schools and those of us who think it can't.

And I do think that the state, through subsidized housing loans and other color-conscious policies (affirmative action for students who attend integrated schools is a favorite of mine) can try and push back against de facto housing segregation. It can't say "you're white, you can't live here", but it can try and reshuffle the incentives so that whites and blacks choose to live near each other in matters beyond simply getting rid of outright discrimination.

No, I'm not saying that the state is legally barred from integrated schools -- I am saying that the state is legally barred from making school assignments based upon race for the purpose of creating integrated schools.

Now there is a way to achieve integrated school by incentivizing enrollment by members of different ethnic groups at schools where they are under-represented. Whether this is done through scholarship programs or some other mechanism is subject to debate, but a student cannot simply be treated as a pawn to be moved around the board to create a racial pattern pleasing to the powers-that-be.

Take one of the cases from yesterday. Mom seeks to enroll her son in school when she moves to a new neighborhood, and is told that the local school has reached its enrollment cap so she has to choose another school. She picks a school under its enrollment cap less than a mile away from her home, but her son is denied admission because of his race and is instead told he will be subject to a bus ride of 45 minutes to an hour each way to a school where he will fit in according to the district's racial color guide. That child has suffered a harm no different than that suffered by little Linda Brown did in Topeka, Kansas -- and it does not matter that in this case there is a benign motive for the discrimination (though I'm sure that the school board in Topeka though its plan was best for the most students, too).

Now, if the district were instead to have offered an incentive to the mother to voluntarily enroll her son at that other school, there is no harm done because it is an action of voluntary choice by the family.

Oh, and by the way, the Seattle Public Schools proves that they don't really believe that diversity is beneficial to student education by maintaining a separate African-American Academy with a 99% black enrollment and policies designed to limit non-black enrollment. If diversity is so important, how can such a program be justified?

Also, under their program a school that is 31% white and 69% black (or 51% white and 49% black) is diverse while a school that is 20% white, 20% Hispanic 30% Asian, and 30% black is not due to the dearth of white students. If that does not indicate the program is fundamentally flawed, nothing does.

The harm isn't exactly the same: Linda Brown had to go miles away to go to a segregated school. Joshua had to go miles away to go to an integrated school. That's a serious distinction. But now I'm curious--are you seriously in favor of race-specific scholarship and incentive programs? Carleton seeks to improve the flow of minority academics through its Mellon-Mays Fellowship, which is given to students of color who wish to pursue a social science Ph.D.. These would be violations of the color-blind norm as well, but you seem to think they're alright.

About Me

Praise

"This is a weblog that is truly welcome in blogtopia — a new blog doesn't seem to be frantically trying to score points for any party. That does NOT mean it's afraid to take a stand or be critical....You really can't predict exactly where The Debate Link will come down on all issues. It's not chanting anyone's mantra." --The Moderate Voice,